“I Do Solemnly Swear” — The Oath of Office and What it Means

Federal employees, Representatives, Senators, judges, political appointees, and the President and Vice President of the United States take an oath of office. So what does taking an oath mean? Why even do it?

The reason is simple — public servants are just that — servants of the people. After much debate about an Oath, the framers of the U. S. Constitution included the requirement to take an Oath of Office in the Constitution itself. Article VI of the Constitution says “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The Constitution does not prescribe the actual text of the Article VI oaths. For federal civil service employees, the oath is set forth by law in 5 U.S. Code § 3331, which reads as follows:

“An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, ___, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.””

The President is also required by the Constitution to take an Oath of Office. Article 2, Section 1, of the US Constitution prescribes the Oath. It says “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Oaths are relatively straightforward, but what do they mean? I see the oath as having 3 important aspects. First, the employee swears to support and defend the Constitution against enemies. Second, s/he swears allegiance to the Constitution. Finally, the employee promises to do his/her job well.

Federal workers often hear a career supervisor or political appointee talking about loyalty to the agency or the boss. One purpose of the Oath of Office is to remind federal workers that they do not swear allegiance to a supervisor, an agency, a political appointee, or even to the President. The oath is to support and defend the U.S. Constitution and faithfully execute your duties. The intent is to protect the public from a government that might fall victim to political whims and to provide a North Star — the Constitution — as a source of direction. Other laws have been enacted that support that view. For example, in 1939, Congress passed and President Franklin D. Roosevelt signed the Hatch Act. We call it that today, but the actual name of the law is “An Act to Prevent Pernicious Political Activities.”

The Oath does not remove ambiguity and it is not always easy for an employee to know what to do. Here are a few examples:

  • Lawful orders. Let’s say someone in authority gives a federal worker a lawful order that s/he does not agree with. That disagreement might be for ethical reasons, differences in policy direction, or other reasons. Federal employees are required to follow lawful orders, even if they disagree with them.
  • Unlawful orders. 5 USC 2302(b) (9)(D) gives employees the right to refuse unlawful orders. Refusing an unlawful order is not easy. The employee may face significant pressure to carry out an order that s/he knows is unlawful. Most employees never have the experience of being given an unlawful order. In the few cases it has happened to me, an explanation to my boss that what I was asked to do was illegal was sufficient and the matter was dropped. If it had not been enough, my only acceptable course would be to refuse to carry out the order. Doing something illegal because you are “just following orders” is not a viable defense.
  • Regulatory violations. What happens when an order violates a regulation or rule, but is not technically illegal? A 2015 Merit Systems Protection Board decision answered that question. MSPB outlined the issues in the case, writing “Specifically, the appellant asserted that the agency violated 5 U.S.C. § 2302(b) (9)(D), which protects employees from retaliation “for refusing to obey an order that would require the individual to violate a law.” 5 U.S.C. § 2302(b) (9)(D). He alleged that the agency improperly stripped him of particular job duties and gave him a subpar performance rating for disobeying an order that would have required that he violate (1) a Federal Acquisition Regulation that limits the authority of a contracting officer’s representative (COR), and (2) “PA296: How to be a COR,” the agency’s training course for COR certification, which further clarifies the limitations to this authority.” MSPB’s final decision said ” … we hold that the right-to-disobey provision at section 2302(b) (9)(D) extends only to orders that would require the individual to take an action barred by statute. Because the appellant in this case contends that he disobeyed an order that would have required him to violate an agency rule or regulation, his claim falls outside of the scope of section 2302(b) (9)(D).” That meant a manager could discipline or even remove an employee for failing to carry out an order that violated a regulation but not a law. In response, Congress changed the law to include violation of a rule or regulation, so employees can refuse orders that violate a rule or regulation.
  • Other situations. The oath of office and most case law do not grant any protection for deciding that an order is a bad idea, bad policy, or morally wrong. In fact, the oath does not grant any protection from anything. It is an oath of allegiance and a promise to do good work. Employees who believe they are being ordered to act in a manner inconsistent with their oath of office may pursue other options, such as whistleblower complaints, contacting their Senators or Representatives or their organization’s Inspector General, or any other avenue provided by law or regulation. Disobeying direct orders is generally not one of the available options. That means an employee who wants to argue that s/he is adhering to the oath of office by disobeying orders has a very tough hill to climb. There is also the option of going to the press, but that can bring its own set of risks. It is up to individual employees to decide how much risk they are willing to assume. 

Federal workers are accountable to the people. Whether an employee was a Trump supporter or a Biden supporter, a supporter of another candidate, or someone who chooses not to vote at all is not relevant to the oath of allegiance to the Constitution. Nor is it relevant to the promise to do a good job. Most federal employees are highly professional. They understand their oath of office and take it seriously. Even though many political appointees in every Administration do not recognize the professionalism of federal workers on the day they take their own oath of office, as their experience with federal workers increases, in previous Administrations they have come to recognize the vital role federal employees play.

I have been hearing more and more from people who say that federal workers should support the President more, or that federal workers should actively work against the President. I heard that to a lesser degree in previous Administrations too. Neither is true. Federal workers should do their jobs, obey the law, and carry out their oath to support and defend the Constitution. That is what most of the American people expect and deserve from their public servants.

Here is Why it is Important for Congress to Act to Stop Schedule F Now

Apparently a lot of people on Capitol Hill think preventing Schedule F from being implemented is not that important. After all, if President Donald Trump could create Schedule F with the stroke of a Sharpie, President-elect Joe Biden can end it the same way after his inauguration. Right? It is not that simple. Here are a few examples of the problems that Schedule F could create that are not easily fixed.

Political appointees who are burrowed in via Schedule F. Burrowing in happens in most Administrations, but Schedule F creates the opportunity for the most egregious burrowing in that we have ever seen. Hundreds of political appointees could be moved into jobs that are covered by Schedule F. Rather than packing up and leaving on January 20, 2021, they will be sitting in agencies in permanent jobs. Easy to fix, right? Just do away with Schedule F. The problem with that is that they will still have jobs and it is likely that firing all of them will result in complaints to the Office of Special Counsel that they are being terminated due to their political affiliation, making it a Prohibited Personnel Practice. The fired employees can also go to court, hoping to get an injunction to stop their removal. What happens if they get a judge to rule that the President has the power to remove anyone in the executive branch and that applies to these folks. Is that a win? No — it opens the door to a dramatic expansion of Executive power and potentially to elimination of protections for career civil servants. The risk is too great to allow it to happen.

Career employees who are moved to Schedule F and then fired. Press reports that the Office of Management and Budget has identified 88 percent of its workforce for movement to Schedule F should be alarming. What happens if the Trump Administration follows through with that move and then fires a large number of the employees. OMB would not be able to function without those career employees. Can then President Biden reverse it? Sure. But the employees will have been processed out of the system. That triggers things like lump-sum payments of annual leave. For some employees, it will cause them to elect to retire. Can you repay a lump-sum leave payment? Yes. Is it easy? No. Lump-sum payment have taxes withheld. Employees have to repay everything, and some may not have the cash on hand to do that, because the IRS will have a big chunk of their money. Can they un-retire? No. Once they retire they are out of government and would have to be rehired as reemployed annuitants. They will also no longer have access to agency systems, and they will have surrendered their agency badges. All of them would have to go through he process of having those reissued. After having been jerked around for purely political reasons, some are likely to say to hell with it and not come back. It will be disruptive, costly, and serve no purpose that serves the American people.

New employees who are hired under Schedule F. If anyone is hired under Schedule F it is likely their jobs will go away. Much like the first group, they are likely to file complaints or lawsuits. They may win. Even if they do not, the government will spend time and money to defend itself.

What happens if converted political appointees or new Schedule F hires win their complaints or lawsuits? They could get backpay and be reinstated to the government. They may end up in jobs that the Biden Administration would prefer to have filled with their own appointees. And they may have a group of people who believe their role is to undermine the policy objectives of the Administration. That is exactly the opposite of what a career civil service is supposed to do. Civil servants serve the American people. They take an oath of office to “support and defend the Constitution of the United States. They carry out policies they do not agree with, as long as those policies are legal.

Congress can stop this incredibly disruptive process in its tracks. Doing so will ensure the government is not dealing with cleaning up the mess, spending taxpayer dollars to go to court, disrupting the lives hundreds or thousands of federal workers, and interfering with the operations of the government when we are in the middle of the worst public health crisis in more than a century. One sentence in the continuing resolution (CR) that funds the government for the rest of the fiscal year will stop it. For Democrats, it should be an easy call. For Republicans, it should also be an easy call. Poisoning the well is never good, and the fact that it can eventually be fixed is no reason to let it happen.